Holding Healthcare Providers Accountable: Regulating Practitioners Through Medical Councils
Doctors in India are regulated by professional bodies at the state level through State Medical Councils (“SMCs”) and at the central level through the National Medical Commission (“NMC”). These authorities are obligated to maintain registers of qualified doctors and discipline them for unprofessional conduct. Based on an analysis of 30 SMC laws, information obtained through 94 RTI applications, and observations from 33 cases from Indian constitutional courts, our research suggests that these professional bodies are failing to perform their duties at several levels. We first examine the structure and functioning of the NMC, and we then proceed to examine the SMCs and their performance over the years.
Registration of Medical Practitioners
The National Medical Commission Act 2019 (“NMC Act 2019”) establishes four autonomous boards, one in particular being the Ethics and Medical Registration Board (“EMRB”). This Board is responsible for registering and regulating medical practitioners. The EMRB is mandated to maintain national registers of practitioners, make regulations to govern their professional conduct, and exercise appellate jurisdiction over the decisions taken by SMCs. However, the EMRB is currently operating with only two out of its sanctioned strength of five members, in addition to the position of President of the Board lying vacant.
Our research suggests that the registration system is uncoordinated and does not accurately reflect the number of doctors. There are stark discrepancies between the number of medical practitioners registered and listed in the Indian Medical Register and the numbers obtained through RTI applications in several states. Further, the EMRB is currently operating with only two out of its sanctioned strength of five members, in addition to the position of President of the Board lying vacant. Meanwhile, the process for setting up the National Register began four years after the enactment of the NMC Act 2019, and even now, the delay persists as the EMRB is yet to set up the web portal for practitioners to apply for registration.
The NMC Registration of Medical Practitioners and License to Practice Medicine Regulations 2023 made by the National Medical Commission also leave significant gaps. There are several ambiguities in the implementation of the provisions due to their drafting.
Most SMC laws follow a common structure. They set up the SMC, provide for the appointment of the Registrar, lay down the registration procedure for doctors, and empower the Councils to refuse, suspend, or cancel registrations. Many of these laws establish bodies representing the interests of doctors, and none of the SMCs have any representation from patients’ groups, local bodies, private sector associations like chambers of commerce, or consumer groups.
Several SMC laws remain unenforced. Four states do not have functional SMCs and several operational SMCs do not maintain or regularly update records of registration. Notably, we observed stark discrepancies between the number of RMPs recorded in the Indian Medical Register and the number obtained from SMCs through RTI applications.
Disciplinary Action Against Registered Medical Practitioners
The SMC’s role in disciplining registered medical practitioners (“RMPs”) for misconduct is important because the alternative judicial remedies are time-consuming and expensive for patients. All the SMC Acts confer wide powers on the council to take disciplinary action, but the legislation of only seven states/union territories permit an aggrieved person to file a complaint against an RMP for professional misconduct. While all SMC laws empower the SMC to remove an RMP from the register and impose fines, some permit the SMC to award imprisonment as well. Some SMC Acts also empower the SMC to award compensation to the aggrieved.
However, SMCs fail to perform their adjudicatory functions effectively. Very few complaints are instituted, and even when instituted, the most common disciplinary actions are warnings or mandating attendance of continuing medical education (CME), with very few instances of an RMP being removed from the register either temporarily or permanently. From information obtained through two SMCs – Karnataka and Uttarakhand – we observe similar trends. SMCs prefer issuing warnings over all other disciplinary measures. Occasionally, they direct that the practitioner provide affidavits or undertake CME, and they rarely order suspension of registration. Interestingly, these two SMCs sanctioned clinical establishments in some instances as well, even when they are not legally empowered to govern establishments.
Moreover, the procedure for appealing orders of SMCs is ambiguous. The NMC Act 2019 and several SMC Acts establish parallel appellate mechanisms with no clarity about which mechanism would prevail over the others. The NMC Act 2019 establishes that the first appeal would lie before the EMRB and the second appeal before the NMC. On the other hand, State Acts allow appeals against decisions of the SMC before the state government. As medical practitioners may practise in more than one state, stipulating the State Government as an appellate authority may not be suitable.
The NMC Professional Conduct Regulations 2023 (currently in abeyance) indicate that states are expected to establish an online grievance redressal system. However, the goal of an accessible and effective grievance redressal mechanism through SMCs is distant. Four SMCs do not have operational websites. Seventeen SMC websites provide no information about complaint processes. Only four SMCs have an online portal for filing complaints.
Recommendations
We recommend that the NMC Act and regulations made under it as well as the various SMC Acts be amended to clarify existing ambiguities, that all medical councils maintain operational websites and publish their respective State Medical Registers in a machine-readable and searchable format, and mandatorily provide an online mechanism for the public to file complaints against RMPs. Additionally, a live dashboard must be established and maintained real-time to track the number of complaints registered and disposed of by each SMC. Members of SMCs should be sensitised and trained on the law and practice of disciplinary proceedings to ensure an equitable and fair procedure.
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About the Authors
Shreya was a Senior Resident Fellow working in the area of Health and Education. She worked on research projects related to public health, patient rights and inclusive education. Her areas of interest include Public Health, Right to Education, Constitutional law, Cyber law, and the intersection of Health and Technology. Shreya graduated with a B.A. LL.B. (Hons.) from Hidayatullah National Law University, Raipur in 2018. She has been published in newspapers and websites like The Hindu and The Wire. She has co-authored the Centre for Civil Society’s ‘Compendium of laws to be repealed in Chhattisgarh’. In collaboration with the Centre for Communication Governance (CCG), she submitted an academic paper to MEITY on ‘Non-Consensual Obscene Content and Indian Law’. Prior to joining Vidhi, she has interned with policy organisations like CCG and the Land Rights Initiative at the Centre for Policy Research, in the Chambers of Senior Advocate Prashant Bhushan, and with law firms like Karanjawala & Co and Samvaad Partners.
Tarika was a Senior Resident Fellow with the Health Team at Vidhi. She has also previously worked with the JALDI initiative and the Climate & Ecosystems Team, where she researched on efficiency, accountability and transparency in the judiciary with an empirical lens. She has written for leading journals and newspapers like Economic and Political Weekly, the Economic Times and the Indian Express. Tarika graduated from Gujarat National Law University with B.A. LL.B. (Hons.) in 2017 and has completed her postgraduate studies in Public Policy from University College London in 2021. She enjoys anime and rock music.
Kim D’Souza is a Senior Resident Fellow at Vidhi. She is currently working on research relating to public health legislation. Prior to Vidhi, Kim worked in real estate and conveyancing law and general corporate advisory for six years, as well as advising organizations in the social sector on contracts and regulatory compliance. She has an LL.B. from Government Law College, Mumbai, and a Bachelor’s in Life Sciences and Biochemistry from St. Xavier’s College, Mumbai.
Shreyashi is a Research Fellow at Vidhi, and works in the area of public health. Her interests include public health, gender & sexuality, mental health, labour, and migration. She completed her B.A., LL.B. (Hons.) from the West Bengal National University of Juridical Sciences, Kolkata in 2016. Prior to joining Vidhi, she was engaged as a consultant to the District Administration, Ranchi. She worked on public health, nutrition, and education in mining-affected and other under-served areas of the district. As part of this engagement, she drafted the Guidelines on COVID-19 Preparedness and Control in Ranchi - and coordinated planning and implementation of health and social support mechanisms (domestic violence, mental health, migrant workers’ rights) during the pandemic. Apart from this, she has close to three years' experience as a researcher on open science and knowledge sharing with the Centre for Innovation, Intellectual Property and Competition at National Law University, Delhi. She co-authored the Open Science India Report, which seeks to guide government/ institutional policies for implementation of open science practices and inclusive research & knowledge ecosystems, especially in the Indian context.
Nihal is a Research Fellow at Vidhi in the Health team. His interests include jurisprudence, technology, and public health. Nihal graduated from the National University of Advanced Legal Studies, Kochi in 2023. He enjoys chess, modern political history, and English fiction.
Rituparna is a Research Fellow at Vidhi and works in the area of health. Her interests include public health, data protection and privacy, and mental health. Prior to joining Vidhi, she was engaged as a Policy Research Associate under Mr. Kashish Aneja, a practicing advocate & consultant with the O’Neill Institute for National and Global Health Law, Washington D.C., where she worked extensively on topics including One Health, global regulation of e-cigarettes, and misleading advertisements related to high fat, sugar and sodium (HFSS) foods and beverages. Rituparna graduated from the National Law University Odisha (NLUO) in 2022 with a B.A., LL.B. (Hons.), and received a Merit Gold Medal in the subject of Personal Law.
